In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

In the Matter of Article 26 of the Constitution and in the Matter of the ELECTORAL (AMENDMENT) BILL, 1961 (1)

Supreme Court.

4,5, 6, 7, 14 July 1961

Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy
to Constitution - Revision of constituencies more than twelve years subsequent
to last effective revision - Whether a sufficient compliance with
constitutional obligation to "revise the constituencies at least once in every
twelve years" - Total membership of Dáil Éireann éireann - Fixation thereof with
reference to population - Revision of constituencies - Materials on which
such fixation and revision to be based - Allocation of Dáil members to
constituencies - Parity of representation as between constituencies - Such
parity to be achieved "so far as it is practicable" - Departures from
absolute mathematical parity - To what extent permissible.

The President referred to the Supreme Court, under Art. 26 of the Constitution,
a Bill, entitled "An Act to Fix the Number of Members of Dáil
Éireann éireann and to Revise their Constituencies and to Amend the Law Relating
to the Election of such Members," for a decision on the question whether the
said Bill was repugnant to the Constitution or to any provision thereof.

The Bill had been passed after the expiration of a period of twelve years
subsequent to the last previous Act effectively revising the constituencies,
namely, the Electoral (Amendment) Act, 1947, the delay being due to the
fact that the Electoral (Amendment) Act, 1959, which had been passed just
inside the twelve-year period, had been declared imvalid in part as repugnant
to the Constitution by Budd J. in O'Donovan v. Attorney General , [1961]
I. R. 114. The figures of population, both for the State as a whole
and for the individual constituencies, on which the provisions of the
Bill were based were those of the census of 1956, notwithstanding that the
census of 1961 was in the course of completion at the time of the passing of
the Bill, and that, both on the estimates of population for 1960 as furnished
by the Central Statistics Office and on estimates based on the current register
of electors, the total number of Dáil members prescribed by the Bill exceeded
the maximum number of one Dáil member for each twenty thousand of the
population permitted by Art. 16, clause 2, para. 2, of the Constitution. On
the 1956 census figures, the total number of Dáil members did not exceed
the number permitted by the said paragraph.

The Court was of opinion 1, That the failure of the Oireachtas effectively
to comply with its obligation to revise the constituencies within the twelve-year
period prescribed by Art. 16, clause 2, para. 4, did not render such
obligation nugatory, but that the obligation remained to carry out such
revision as soon as possible after the termination of the period.

2, That "the population" to be considered in the fixation of the total
membership of Dáil Éireann éireann pursuant to para. 2 of clause 2 of Art. 16, and
in the revision of the constituencies pursuant to para. 4 of that clause must
be read to mean "the population . . . as ascertained at the last preceding
census," specified in para. 3, and that "the last preceding census" so specified
must be read to mean "the last preceding completed census" in as much as
in no other way could the population be calculated with the degree of certainty
requisite to comply with the provisions of para. 2 limiting the total membership
of Dáil Éireann éireann by reference to the total population of the State.
Accordingly, the total number of members of Dáil Éireann éireann provided for by
the Bill was not excessive. nor was the ratio of Dáil members to population
per constituency arrived at on a wrong basis.

3, That the Irish phrase, "sa mhéid gur féidir é" (literally, "so far as it
is possible"), in the Irish text of Art. 16, clause 2, para. 3, of the Constitution,
relating to the attainment of parity of ratio between Dáil members
and population in each constituency must, in view of the impossibility of
attaining exact mathematical parity, be construed as synonomous with the
equivalent phrase, "so far as it is practicable," in the English text.

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

170

1 I.R.

Supreme Court.

The decision as to the extent of parity which was practicable was a matter
for the Oireachtas, which should not be reviewed by the Court unless there
had been a manifest infringement of the provisions of the paragraph. The
Court would not lay down a figure above or below which a deviation from the
national average would not be permitted, but would interfere only in the
case, which was not this case, where the divergences from the national
average were such as to make it clear that the requirements of the Constitution
had not been carried out.

The Court accordingly advised the President that the said Bill was not
repugnant to the Constitution.

Reference, in pursuance of Article 26 of the Constitution,
of a Bill—the Electoral (Amendment) Bill, 1961—passed by
both Houses of the Oireachtas, to the Supreme Court for a
decision on the question as to whether the said Bill was repugnant
to the Constitution or to any provision thereof. The
material provisions contained in the Bill are set out in the
decision of the Court, post, at p. 178.

The Court, in accordance with Article 26, clause 2, para. 1,
of the Constitution, heard arguments on behalf of the
Attorney General and by counsel assigned by the Court. At
the hearing it was agreed by counsel that owing to the nature
of the provisions contained in the Bill it would be more convenient
if counsel assigned by the Court should open the
argument and state the grounds upon which it would be submitted
that the Bill was repugnant to the Constitution, and
this course was approved by the Court.

Five matters arise on this Bill, any one of which, we
submit, renders it repugnant to the Constitution. The
first three matters did not arise, and could not have
arisen, in O'Donovan v. Attorney General (1), the last two
were considered in that case, but the Oireachtas, notwithstanding
the guidance given to it by Budd J. in O'Donovan's
Case (1), none the less failed to comply with the provisions
laid down in Art. 16, clause 2, paras. 3 and 4, as governing
the allocation of members of Dáil Éireann éireann to constituencies.

First, Art. 16, clause 2, para. 4, prescribes that "the
Oireachtas shall revise the constituencies at least once in
every twelve years." The revision effected by this Bill was
made over thirteen years after the last effective electoral
revision, namely, that carried out by the Electoral (Amendment)
Act, 1947, which became law on the 27th November,
1947. While the delay in effective revision was rendered
inevitable by the fact that the revision made by the Act of
1959, and declared ineffective, was made immediately before

(1) [1961] I. R. 114.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

171

1 I.R.

Supreme Court.

the end of the twelve-year period, the present revision is,
nevertheless, in express contravention of the provisions of
that paragraph.

Secondly, it is now apparent that the total number of
members in Dáil Éireann éireann has been fixed at more than one
member for each twenty thousand of the population, contrary
to Art. 16, clause 2, para. 2. The figure of 144 members
fixed for the Dáil by the Act of 1959 which was fixed on the
basis of the 1956 census returns, showing a total population
of 2,898,264 in the State, has not been departed from in
the present Bill, notwithstanding that the Annual Estimates
furnished by the Central Statistics Office show that the
estimated population of the State is April, 1960, was
2,834,000 (which would allow for a Dáil of, at most, 141
members), while, on the basis of the register of electors for
1961 and of the figure of 61 Dáil electors per 100 of population,
the population would amount only to 2,757,801 (which
would allow for a Dáil of, at most, 137 members). While
these figures are admittedly less precise than the 1956
census figures, nevertheless one or other of these sets of
figures ought to have been adopted by the Oireachtas, as
affording a more accurate guide than the 1956 census figures
to the exact population of the State at the time of the
passing of the Bill.

A deliberate change of expression in one section of a
statute from that used in an earlier section, must be takenprima facie to import a change of intention: Ricket v.Directors, &c of Metropolitan Railway Co. (1). The primary
and natural meaning of the words of a statute or other
authoritative document ought never to be extended by the
Court "unless for a case amounting to a necessity, or
approaching to it": per Lord Bramwell in M'Cowan v.Baine (2). [They also referred to Maxwell on the Interpretation
of Statutes, 1946 ed., pp. 14 and 324.] Accordingly, the
reference in para. 3 of Art. 16, clause 2, to "the population
of each constituency, as ascertained at the last preceding
census," when contrasted with the absence of reference to
the last preceding census in paras. 2 and 4 of that clause,
indicates that the Oireachtas is bound by the figures of the
last preceding census only in so far as it is required by para. 3
to seek to achieve parity of representation as between the
various constituencies. The provisions of para. 4 qualify
those of para. 3 to this extent: that, where a change in
distribution of population sufficient to require a revision of
constituencies is ascertained to have taken place in an intercensal
period, the Oireachtas is bound to make such revision

(1) L. R. 2 H. L. 175.

(2) [1891] A. C. 401, at p. 409.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

172

1 I.R.

Supreme Court.

without awaiting the next census. A simple example of a
case is which para. 4 would become applicable would be the
case of a wholesale population movement from the centre
of Dublin to the suburbs during an inter-censal period, where
the revised population figures would be ascertainable from
the information made available by Dublin Corporation.

Thirdly, it is submitted that the Bill under review contravenes
Art. 16, clause 2, para. 3, of the Constitution in as
much as it purports to determine the number of Dáil members
per constituency by reference to the population of each
constituency as ascertained at a census earlier than the last
preceding census, which, it is submitted, in this context
means the census taken in April, 1961. The provision in
para. 4 that the constituencies are to be revised "with due
regard to changes in distribution of the population"indicates that the intent of the Constitution was that, where
the results of a recent census are on the verge of being
ascertained, such revision ought to be deferred pending such
ascertainment, rather than be made with reference to a
more distant census.

Fourthly, the Oireachtas has not yet succeeded in complying
with the requirement of Art. 16, clause 2, para. 3,
that the ratio between the number of Dáil members for each
constituency and its population, even on the basis of the
1956 census, should, as far as it is possible, be the same
throughout the country: see the Irish text of the paragraph,
which prescribes that the ratio between Dáil members
and population in each constituency must be "ar cothrom,
sa mhéid gur féidir é, ar fuaid na dúiche uile." Here, as the
Irish and the English texts of the paragraph do not coincide
("gan [iad] . . . do bheith do réir a chéile": Art. 25, clause 5,
para. 6), the Irish text of the paragraph must prevail.
[They also referred to Art. 63]. This imposes a slightly more
stringent obligation on the Oireachtas than does the English
text, which requires parity of representation as between the
constituencies merely "so far as it is practicable." While
it is conceded that absolute mathematical parity of representation
as between the constituencies is not possible, the
paragraph requires as near an approach thereto as can
reasonably be achieved. It is suggested that the degree of
parity which should be required is that the population per
Dáil member of each constituency should be not more than
500 above or below the national average. Here, taking the
1956 census figures as a basis throughout, out of a total of
thirty-nine constituencies, nineteen have an average population
per Dáil member deviating by more than 500 from the
national average—eight above it and eleven below it; six

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

173

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Supreme Court.

constituencies have an average population per Dáil member
deviating by more than 750 from the national average—
two above it and four below it. None diverge from the
national average of population per Dáil member by as much
as 1,000. The number of persons per Dáil member in the
various constituencies ranges from 20,916 in Dublin South
Central to 19,294 in Clare—a total variation of 1,622, the
greatest divergence from the national average being 833 in
the case of Clare.

In particular, the two groups of adjoining constituencies
consisting of the eight constituencies for the City and County
of Dublin, and of the nine constituencies for the province of
Connaught and the Counties of Clare and Limerick have each
been allocated 34 Dáil members. The former group has a
total population of 705,006, which gives it one Dáil member
for each 20,735 of population, while the latter group has a
total population of 664,278, which gives it one Dáil member
for each 19,449 of population. It would have been not only
physically possible, but administratively practicable, so to
have allocated Dáil members to constituencies as to give the
former group an extra Dáil member at the expense of the
latter—when virtual mathematical parity of representation
as between the two groups and a close correspondence between
the ratio for each group and the national average
would have been achieved. The provision of Art. 16,
clause 2, para. 2, that the total number of members of Dáil
Éireann éireann should not be fixed at less than one member for
each thirty thousand, or at more than one member for each
twenty thousand, of the population, appeared to envisage
the original fixation of the membership of Dáil Éireann éireann on
the basis of one member for each twenty-five thousand of
the population, approximately. If this basis had been
adhered to by the Oireachtas in enacting this Bill, it would
have been a simple matter to remedy the disparity of ratio
of Dáil members to population between Dublin and the West,
by allocating another seat or two to Dublin without necessarily
interfering with the Western constituencies. The administrative
difficulties which might be created by such interference
resulted from the action of the Oireachtas in providing
that the Dáil should contain the maximum number of
members constitutionally permissible, having regard to the
1956 census figures.

Fifthly, the Oireachtas, in purporting to revise the constituencies
in this Bill has failed to have due regard to changes
in distribution of the population as required by Art. 16,
clause 2, para. 4. If the Court takes the view that the
Oireachtas. in revising the constituencies pursuant to this

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

174

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Supreme Court.

paragraph, was bound to have regard to the estimates of
population furnished either by the Central Statistics Office
or by calculations based on the current electoral lists, the
Bill is clearly invalid and repugnant to the Constitution for
the reasons set out on the second ground. If the Oireachtas
was entitled to base its revision on the results of the 1956
census, the inequalities of distribution produced on this
basis have adequately been shown in our arguments on the
fourth ground.

While the consideration of the constitutionality of Acts of
the Oireachtas must be approached with a presumption in
favour of such constitutionality (per Murnaghan J. in National
Union of Railwaymen and Others v. Sullivan and Others (1),it is submitted that no such presumption operates in favour
of a Bill referred by the President to this Court in pursuance
of the provisions of Art. 26 of the Constitution, in as much
as such reference of itself indicates that the President was
aware of the possibility that such Bill, if signed by him and
promulgated as a law, might later be found to be unconstitutional.
This presumption of constitutionality is expressly
related by this Court in In re Art. 26 of the Constitution
and the Offences Against the State (Amendment) Bill (2)to "any particular law" which, it is submitted means an
Act which has been signed by the President pursuant to
Art. 13, clause 3, para 1, and promulgated by him pursuant
to Art. 13, clause 3, para. 2, as distinct from a Bill which
has merely been passed by the Oireachtas.

The necessity of rebutting such presumption of constitutionality
arises only where it is sought to establish that
a measure is repugnant to the Constitution by reason of
some implied prohibition or repugnance: In re Art. 26 of
the Constitution and the Offences Against the State (Amendment)
Bill , 1940 (1); In re Art. 26 of the Constitution and
the School Attendance Bill , 1942 (3). Where, as here, it is
sought to establish that a measure is repugnant to the
Constitution by reason of the contravention of an express
prohibition contained therein, the Court, in considering the
measure, ought not to exercise any presumption in its favour.

The provisions of s. 5 of the Bill before the Court, relating
to the outgoing Ceann Comhairle, are necessitated by the
combined effects of Art. 16, clause 6, of the Constitution,
which requires provision to be made by law to enable an

(1) [1947] I. R. 77, at p. 100.

(2) [1940] I. R. 470.

(3) [1943] I. R. 334.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

175

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Supreme Court.

outgoing Ceann Comhairle to be deemed without any actual
election to be elected to Dáil Éireann éireann at the ensuing general
election, and of Art. 16, clause 2, para. 1, which requires
Dáil Éireann éireann to be composed of members who represent
constituencies determined by law. The provision required
by Art. 16, clause 6, is made by the Electoral (Chairman of
Dáil Éireann éireann) Act, 1937, s. 3, sub-s. 1(b) of which prescribes
that, where a revision of constituencies takes effect on a
dissolution of the Dáil, the Ceann Comhairle shall be deemed,
at the ensuing general election, to be elected to the constituency
declared on such revision to correspond with the constituency
for which he was previously a member of Dáil
Éireann éireann. [He also referred to the Electoral (Chairman of
Dáil Éireann éireann) Act, 1937, s. 4.]

The provisions of Art. 16, clause 2, para. 4, of the Constitution,
which require the Oireachtas to revise the constituencies"at least once in every twelve years" are
directory, not mandatory. If, for any reason, the Oireachtas
has failed to carry out such revision within the twelve-year
period, its obligation under this paragraph of the Article is
fulfilled by a revision as soon as reasonably possible after
the expiration of the period. If this requirement were to be
construed as mandatory, there could, on the next dissolution
of Dáil Éireann éireann, be no constituencies in existence to which
members of Dáil Éireann éireann could be elected.

"The last preceding census" to be considered in determining
the ratio between the population of the respective
constituencies and the number of Dáil members to be elected
for each, pursuant to Art. 16, clause 2, para. 3, is still the
census of 1956. The census of 1961 has not yet been taken,
in as much as the counting of the population under such
census has not yet been completed. The Irish version of
the paragraph refers to "an daonáirimh is déanaí dá
ndearnadh,", which might literally be translated "the last
counting of the population which was made," the Irish word,"daonáirimh," involving the concept of counting. This
indicates that the phrase, "the last preceding census," in
the paragraph was intended to refer, in this context, to"the last preceding census which has been completed."Paragraphs 2, 3 and 4 of Art. 16, clause 2, ought to be read
together as all being based on the determination of the
population, both of the State as a whole and of the individual
constituencies, in a particular way, specified only in para. 3.
This construction finds support in the fact that the one of
the three calculations described in the three paragraphs for
which the most precise information possible is most essential
is that described in para. 2, which involves the fixation of

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

176

1 I.R.

Supreme Court.

the total membership of Dáil Éireann éireann by reference to the
total population of the State. Paragraphs 2 to 5 of Art. 16,
clause 2, are derived from Art. 26 of the Constitution of
1922, from which they are reproduced 'with no material
variation, other than the division of the single Article into
four separate paragraphs. The effect of para. 4 is, it is submitted,
that a revision of constituencies must take place
once a completed census shows a significant change in the
distribution of the population however recently the constituencies
had previously been revised.

The revision of the constituencies by reference to the
proportion of electors to the total population in each could
not be carried out in such a way as to comply with Art. 16,
clause 2, para. 3, in view of the grave variation of that
proportion as between the constituencies, ranging from 53
per cent. in Dublin County to 66 per cent. in West Donegal.

The provision in Art. 16, clause 2, para. 3, that the ratio
of members of the Dáil for each constituency to the population
of that constituency shall be the same throughout the
State "so far as it is practicable," is made in recognition of
the necessity of some departure from absolute mathematical
equality. It is the function of the Oireachtas to determine
the extent to which such departure is necessary and the
Court, in considering whether or not the Oireachtas has
exceeded such function, is bound to have regard to the law
as it existed at the time of the enactment of the Constitution.
[He referred to Melling v. Ó Mathghamhna ó mathghamhna (unreported) and
to In re Article 26 of the Constitution and the Offences Against
the State (Amendment) Bill , 1940 (1)]. The Court is, therefore,
bound to consider the operation of the Electoral Acts of
1923 and of 1935, both accepted as implementing the Constitution
of 1922, and therefore, it must be assumed, accepted
by those who framed the Constitution of 1937 as indicating
the extent to which absolute mathematical parity might
be departed from. The total variation of persons per
member between the most highly represented and the
least highly represented constituencies under the Act of 1923
was 3,708, the maximum divergence from the national
average being 2,458. Under the Act of 1935 the corresponding
figures were 4,411 and 2,923. It is submitted that, if
departures to that extent from absolute mathematical
parity could be sanctioned as being as close approximations
to absolute mathematical parity as were practicable, the
much smaller departures from parity contained in the Bill
under review must be regarded as permissible under the
provisions of Art. 16, clause 2, para. 3. It is conceded that,

(1) [1940] I. R. 470.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

177

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Supreme Court.

possibly, an even closer approximation to absolute mathematical
parity of representation as between constituencies
could have been achieved by the creation of constituencies
of six or seven seats and by the more systematic breaching
of county boundaries, both courses which are liable to
produce administrative difficulties; but nevertheless, in
this Bill, a closer approximation to parity as between the
constituencies has been achieved than that suggested by
Budd J. as practicable in O'Donovan v. The Attorney General (1).

Sean MacBride, Senior Counsel
, in reply:—

The issue, as between our construction of the three relevant
paragraphs of Art. 16, clause 2, and that of the Attorney
General is based in essence on the construction to be placed
on para. 4. Our submission is that para. 3 is designed to
deal with a revision of constituencies made immediately
after the completion of a census, and para. 4 with a revision
made, either by the will of the Oireachtas or by the compulsion
of para. 2 in the light of the most recent population
figures, in an intercensal period. The Attorney General, on
the other hand, construes both para. 3 and para. 4 as deriving
effect from a completed census. While both constructions
enable effect to be given to paras. 3 and 4 without adding
words to the paragraphs or taking words therefrom, it is
submitted that, once the population is found to have passed
beyond the maximum or minimum number of persons per
member of Dáil Éireann éireann prescribed by para. 2, the Oireachtas
then has no option but to revise the constituencies forthwith;
otherwise, para. 2 can be regarded only as surplusage.

In determining what the total number of Dáil members
should be in relation to the total population of the State, the
Oireachtas ought to have relied on the more accurate, if not
precise, figures provided either by the current electoral
lists or by the most recent population estimates, rather than
on the precise, but no longer accurate, figures provided by
the census of 1956. The fixing of the total membership of
Dáil Éireann éireann and the revision of the constituencies by
reference to an out-of-date census can be justified only by
the importation of the phrase, "as ascertained at the last
preceding census," into paras. 2 and 4, as well as into para. 3,
of clause 2 of Art. 16. This phrase must be deemed to have
been omitted designedly from those two paragraphs, in the
light of the rule of construction, expressio unius rei est
exclusio alterius.

The degree of elasticity with which para. 3 may be construed
cannot be extended in the manner sought by the

(1) [1961] I. R. 114.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

178

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Maguire C.J.

Supreme Court.

Attorney General, but is restricted by the terms of the
paragraph itself to what is "practicable." Here, by the
creation of larger constituencies, it would have been practicable
to have achieved a greater degree of parity in certain
cases without the unnecessary breach of county boundaries,
as, for instance by the joining of Counties Monaghan and
Louth, on one hand, and of Counties Leitrim and Roscommon,
on the the other hand, into six-seat constituencies, rather
than by the insertion in the Monaghan constituencies of two
isolated areas in Louth and in the Roscommon constituency
of a portion of Co. Leitrim.

Cur. adv. vult.

The decision of the Court was delivered by Maguire C.J.

Maguire C.J.
:—

14 July

In this case the President, in pursuance of Article 26 of
the Constitution and after consultation with the Council of
State, referred to this Court a Bill entitled the Electoral
(Amendment) Bill, 1961, for decision whether the Bill (or
any provision or provisions thereof) is repugnant to the
Constitution or to any provision thereof.

In accordance with the said Article, this Court having
heard arguments by the Attorney General and by counsel
assigned by it and having considered such arguments has
arrived at the following decision.

The Bill is entitled "An Act to Fix the Number of Members
of Dáil Éireann éireann and to Revise their Constituencies and to
Amend the Law Relating to the Election of Such Members."

By s. 2 it provides that after the next dissolution Dáil
Éireann éireann shall consist of 144 members.

Sect. 3 provides that after the next dissolution the members
of Dáil Éireann éireann shall represent the constituencies specified
in the Schedule to the Act.

Sect. 4 provides that a constituency specified in the
Schedule shall return the number of members in the third
column of the Schedule.

Sect. 5 provides for the re-election of the outgoing Ceann
Comhairle.

We are not concerned with the three sections which
follow. They deal only with arrangements in connection
with the holding of elections.

Sect. 9 repeals the Electoral (Amendment) Acts of 1947
and 1959.

The Court accepts the principle laid down by this Court
in In re Art. 26 of the Constitution and the Offences Against

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

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Maguire C.J.

Supreme Court.

the State (Amendment) Bill , 1940 (1) and adopted in In re
Art. 26 of the Constitution and the School Attendance Bill ,1942 (2) that "where any particular law is not expressly
prohibited and it is sought to establish that it is repugnant
to the Constitution by reason of some implied prohibition
or repugnancy, such repugnancy must be clearly established"(per Sullivan C.J., at p. 344).

The authority of the Oireachtas to fix the number of
members of Dáil Éireann éireann and to revise the constituencies
derives from Article 16, clause 2, of the Constitution. The
decision of the Court turns on the construction of this
clause. It reads as follows:—

"2. 1 Dáil Éireann éireann shall be composed of members who
represent constituencies determined by law.

2 The number of members shall from time to time be
fixed by law, but the total number of members of Dáil
Éireann éireann shall not be fixed at less than one member for each
thirty thousand of the population, or at more than one
member for each twenty thousand of the population.

3 The ratio between the number of members to be
elected at any time for each constituency and the population
of each constituency, as ascertained at the last preceding
census, shall, so far as it is practicable, be the same throughout
the country.

4 The Oireachtas shall revise the constituencies at
least once in every twelve years, with due regard to changes
in distribution of the population, but any alterations in the
constituencies shall not take effect during the life of Dáil
Éireann éireann sitting when such revision is made.

5 The members shall be elected on the system of
proportional representation by means of the single transferable
vote.

6 No law shall be enacted whereby the number of
members to be returned for any constituency shall be less
than three."

Although in the two earlier cases of a reference of a Bill
to the Court under the Article counsel for the Attorney
General opened the argument, it was agreed by counsel that
owing to the nature of the provisions contained in this Bill
it would be more convenient if counsel assigned by the
Court should open the argument and state the grounds on
which it would be submitted that the Bill was repugnant to
the Constitution. This course was approved by the Court.

The first ground relied upon was that the Bill was not
passed within the period of twelve years set as a limit in
para. 4 of clause 2 of Article 16. The last effective Act
passed in accordance with the sub-section, viz., the Electoral

(1) [1940] I. R. 470.

(2) [1943] I. R. 334.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

180

1 I.R.

Maguire C.J.

Supreme Court.

(Amendment) Act, 1947, was enacted on the 27th November,
1947. An Electoral (Amendment) Act (No. 30 of 1959), had
been passed on the 26th November, 1959—just within 12
years since the passing of the Act of 1947. The main provisions
of this Act were, however, declared to be repugnant
to the Constitution and invalid by Mr. Justice Budd in the
case of O'Donovan v. The Attorney General (1). The Bill now
referred to this Court was passed by both Houses of the
Oireachtas on the 8th June, 1961. Accordingly, it is clear
that the provisions of the sub-section have not been complied
with in terms. This Court is of opinion that while the subsection
makes it obligatory on the Oireachtas to carry out
the revision of constituencies at least once in every twelve
years, if this period has been allowed to elapse without a
revision being carried out the obligation remains to carry it
out as soon as possible. There is, of course, a satisfactory
explanation in this case. The Oireachtas did provide a
revision within the stipulated period of twelve years by the
Electoral (Amendment) Act, 1959, and it was the declaration
of the High Court that parts of the Act were invalid which
has made necessary the present Bill.

The next ground of objection is that clause 2, para. 2, of
Article 16 has not been complied with. This paragraph
provides for the fixing of the number of members of Dáil
Éireann éireann. The number of members of Dáil Éireann éireann to be
fixed is variable within prescribed limits. There must be
not less than one member for each 30,000 of the population
and not more than one for each 20,000. The Oireachtas
obviously has taken as the population the figure ascertained
at the census of 1956, viz., 2,898,264. On this basis, the
figure of 144 members is within the limit permitted by the
sub-section.

It is submitted, however, that the figures of the annual
estimates of population compiled by the Central Statistics
Office show a steady decline in population and that on the
basis of such statistics the population had by April, 1960,
fallen to 2,834,000. This would only allow a membership
of 141.

Alternatively, it is suggested that a reliable yearly
estimate of population may be had from the register of
electors which is compiled annually for electoral purposes.
It is stated that the ratio of electors to population is approximately
61 to every 100 of the population. If calculated on
this basis, it is submitted that the population of the State
is shown to have fallen in April, 1961, to 2,757,801 and if
accepted as a basis for the calculation to be made under
clause 2, 2, of Article 16, it would only justify a membership

(1) [1961] I. R. 114.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

181

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Maguire C.J.

Supreme Court.

of 137. It is submitted further by Mr. MacBride that where
the Constitution intended that the figures of the last census
should be used as a basis as in clause 2, 3, of the Article
it did so in plain language and that on the principle, expressio
unius rei est exclusio alterius, it did not intend that the
census figures should be used for the calculation required by
clause 2, 2. This Court is of opinion that this principle
does not apply for the following reasons. It is necessary in
order to determine whether the law keeps within the constitutional
limits laid down in clause 2, 2, to obtain an
exact figure. Neither of the methods suggested of calculating
the numbers of the population provide such a figure. They
are only estimates and in a degree are expressions of opinion
and not statements of fact. The ordinary way of obtaining
the population of a country and the only way of ascertaining
an exact figure is by reference to the last completed census
of the population. After a few years an estimate based on
vital statistics may well provide a closer approximation to
the actual numbers, but being at best an estimate, it can
never provide a figure for exact calculation as is required
by clause 2, 2. The same objection applies with even
greater force to a figure of population based on the electors'
lists. For these reasons it seems to the Court that the
figure of population cannot be anything other than the
figure ascertained by the last census. The reason why
clause 2, 2, does not specify that the figure is to be that
given by the last census is that this was sufficiently plain
and that it was unnecessary to do so. On no other basis
may the calculation be made.

The next submission is that the Bill fails to comply with
the requirements of Article 16, clause 2, 3, in two respects;
firstly because the figures of population to be used as the
basis for determining the ratio of members to be elected for
each constituency to the population of each constituency
should be those which will be obtained as a result of the
census taken in April, 1961, and not those of the census of
1956. It is clear that if the language of the English text
alone is looked at this argument fails as the figures to be
used are those of "the population . . . as ascertained at the
last preceding census."

The submission, however, is made that the Irish and
English text of the Constitution are here in conflict. The
concept of "ascertainment," it is said, is absent from the
Irish version; and the duty of the Oireachtas, it is said,
once a census is taken, is to stay its hand until the figures
are counted. During this interval the Oireachtas is, it was
submitted, disabled from proceeding with a revision of the
constituencies. If the idea of ascertainment of population

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

182

1 I.R.

Maguire C.J.

Supreme Court.

were absent from the Irish text it would be somewhat
surprising to find the Oireachtas in the position of having
to await the publication of the figures of population before
it could act under para. 4. It would be a more reasonable
construction in such instance to construe the Irish text as
pointing—and intended to point—to a completed census and
not to a mere taking of census. Much has to happen between
the taking of a census and the ascertainment of the result.
The Court, however, need not now concern itself with such
problems. In its view the Irish text of para. 3, by its
words, clearly indicates that what is pointed to is the ascertainment
of the figures of the census, not its mere taking.
The Irish text, "do réir an daonáirimh is déanaí dá ndearnadh,"indicates no conflict with the English. "Daonáireamh"connotes not merely a census, but an ascertained census;
the verb, "dearnadh," strengthens this meaning. The
Irish text is not in conflict with the English, and it therefore
affords no support for the contention put forward by counsel
opposing the Bill.

Secondly, it is contended that the requirement of the same
clause that so far as practicable the ratio of members of each
constituency to the population of each constituency should
be the same throughout the country has not been complied
with. The English text requires that this uniformity should
be achieved as far as practicable. It is, however, argued
that the Irish text is more stringent and requires that this
uniformity should be achieved "as far as possible." It is
submitted that there is thus a conflict between the two texts
which in accordance with the provisions of Article 63 must
be resolved by accepting the Irish text.

The same point was taken in argument in the case of O'Donovan v. Attorney General (1) before Mr. Justice Budd,
in which the question for decision was whether the Electoral
Act of 1959 was valid. This Court agrees with the conclusion
which Mr. Justice Budd reached and with the reasoning
upon which he supports it. He held that no material discordance
exists between the English and Irish texts of
clause 2, 3, of Article 16. He proceeded upon the basis
that the clause, properly construed, means that the ratio
specified must be the same throughout the country "so far
as it is practicable." He cites with approval Lord Goddard
C.J., who in Lee v. Nursery Furnishings, Ltd. (2) accepted
the meaning of "practicable" contained in the Oxford
Dictionary, i.e., "capable of being . . . carried out in
action . . . feasible." Mr. Justice Budd went on to say:—

"Applying that to sub-clause 2, 3, I therefore reject the
view that an all but mathematical parity of ratio is to be

(1) [1961] I. R. 114.

(2) 61 T. L. R. 263.

[1961]

In re Art. 26 of the Constitution and the Electoral (Amendment) Bill, 1961.

183

1 I.R.

Maguire C.J.

Supreme Court.

attained and I construe the sub-clause as meaning that a
parity of ratio of members to population in the constituencies
throughout the country is to be attained by the Oireachtas
as far as that is capable of being carried into action in a
practical way having regard to such practical difficulties as
exist and may legitimately, having regard to the context
and the provisions of the Constitution generally, be taken
into consideration."

The sub-clause recognises that exact parity in the ratio
between members and the population of each constituency
is unlikely to be obtained and is not required. The decision
as to what is practicable is within the jurisdiction of the
Oireachtas. It may reasonably take into consideration a
variety of factors, such as the desirability so far as possible
to adhere to well-known boundaries such as those of counties,
townlands and electoral divisions. The existence of divisions
created by such physical features as rivers, lakes and
mountains may also have to be reckoned with. The problem
of what is practicable is primarily one for the Oireachtas,
whose members have a knowledge of the problems and
difficulties to be solved which this Court cannot have. Its
decision should not be reviewed by this Court unless there
is a manifest infringement of the Article. This Court cannot,
as is suggested, lay down a figure above or below which a
variation from what is called the national average is not
permitted. This, of course, is not to say that a Court cannot
be informed of the difficulties and may not pronounce on
whether there has been such a serious divergence from
uniformity as to violate the requirements of the Constitution.

To justify the Court in holding that the sub-section has
been infringed it must, however, be shown that the failure
to maintain the ratio between the number of members for
each constituency and the population of each constituency
involves such a divergence as to make it clear that the
Oireachtas has not carried out the intention of the sub-clause.

In the opinion of the Court the divergencies shown in the
Bill are within reasonable limits.

Accordingly, the Court is of opinion that this ground of
objection has not been established.

For these reasons this Court decides that the Bill is in no
respect repugnant to the Constitution and will advise the
President accordingly.